IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40921
Summary Calendar
MASSEY L. MOORE,
Plaintiff-Appellant,
versus
SHERMAN POLICE DEPARTMENT;
DAVID WOODS, Public Information Officer
for Sherman Police Department;
THOMAS H. FLOWER, County Assistance Attorney,
Defendants-Appellees.
________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:96-CV-391
________________________________________________________
September 4, 1998
Before POLITZ, Chief Judge, EMILIO M. GARZA and DeMOSS, Circuit Judges.
PER CURIAM:*
Massey L. Moore, proceeding pro se and in forma pauperis, appeals the
district court’s dismissal, as frivolous, of his civil rights lawsuit, 42 U.S.C. § 1983.
Moore moves for a court-appointed expert and for service of a subpoena duces
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5 TH CIR.
R. 47.5.4.
tecum. Moore’s motions are subject to rejection.
We review the dismissal of an IFP complaint as frivolous for an abuse of
discretion.1 Although prisoners have a constitutionally protected right of access to
the courts, to prevail on such a claim, the claimant must show that his legal position
was prejudiced by the alleged violation.2
Moore has failed to show that his legal position was prejudiced by the
defendants’ conduct. Accordingly, the district court did not abuse its discretion by
dismissing his § 1983 complaint as frivolous.
We conclude that Moore’s appeal is without arguable merit and is frivolous, 3
and, accordingly, it is subject to dismissal.4 Moore was previously warned that the
filing of additional frivolous appeals would result in the imposition of sanctions. 5
A prisoner may not
bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3
or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Including the dismissal of this appeal, Moore has three
1
Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997).
2
Bounds v. Smith, 430 U.S. 817 (1977); McDonald v. Steward, 132 F.3d 225 (5th Cir.
1998); Henthorn v. Swinson, 955 F.2d 351 (5th Cir. 1992).
3
See Howard v. King, 707 F.2d 215 (5th Cir. 1983).
4
See 5th Cir. R. 42.2.
5
See Moore v. Sherman Police Dep't et al., No. 95-40374 (5th Cir. Aug. 22, 1995).
"strikes."6 Therefore, except for cases involving an imminent danger of serious
physical injury, § 1915(g) bars Moore from proceeding further under § 1915. He
may proceed in subsequent civil cases under the fee provisions of § 1911-14
applicable to everyone else.
MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) SANCTION
IMPOSED.
6
See Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).